Old Age and Survivor's Insurance

SSR 87-7c: SECTIONS 202(e)(4) AND 202(f)(5) OF THE SOCIAL SECURITY ACT
(42 U.S.C. 402(e)(4) AND 402(f)(5)) WIDOW(ER)'S INSURANCE BENEFITS --
NONENTITLEMENT OF SURVIVING DIVORCED SPOUSES WHO REMARRIED AFTER AGE 60 --
CONSITUTIONALITY OF FORMER PROVISIONS

20 CFR 404.336(e)

SSR 87-7c

Bowen v. Owens et al., _____ U.S. _____, 106 S. Ct. 1881 (1986)

The claimant married the worker in 1937 and divorced him in 1968. In
1978, when she was age 61, the claimant remarried. The worker died in June
1982, and the following month, the claimant applied for widow's benefits
on his earnings record as a surviving divorced wife. Certain provisions of
the Social Security Act (the Act) in effect from January 1979 through
December 1983 authorized payment of survivor's benefits to widower spouses
who had remarried after age 60, but not to similarly situated surviving
divorced spouses. Consequently, the claimant's application was denied in
August 1982 because she had remarried. The claimant subsequently filed a
class action suit, contending that the statutory provision denying
benefits because of her remarriage was unconstitutional. While this suit
was pending, the 1983 amendments to the Act went into effect, so that all
otherwise eligible surviving divorced spouses who had remarried after age
60 were eligible, as of January 1984, to receive survivor's benefits in
the same manner as widowed spouses. The district court found for the
claimant. It reasoned that because Congress had chosen to treat surviving
divorced spouses and widowed spouses identically upon the worker's death,
there was no rational basis for distinguishing between them if they
remarried. On appeal by the Secretary, the Supreme Court found that, when
Congress decided to create some exceptions to the general rule terminating
benefits upon a subsequent remarriage, it was not required to take an
all-or-nothing approach. Instead, Congress decided to proceed more
cautiously because of fiscal concerns by choosing to create an exception
for widowed spouses. While it may have been feasible to have extended
benefits to surviving divorced spouses who had remarried after age 60
beginning January 1979 rather than beginning January 1984, the Supreme
Court concluded that Congress was not constitutionally obligated to do so.
The Supreme Court also found that, because surviving divorced spouses do
not enter into marriage with the same level of dependency on the worker's
earnings record as widowed spouses, it was rational for Congress to treat
these groups differently after remarriage. In reversing the district
court's decision, the Supreme Court held that the provisions in
question did not violate the equal protection component of the Due Process
Clause of the Fifth Amendment.

POWELL, Supreme Court Justice:

Certain provisions of the Social Security Act in effect between 1979 and
1983 authorized payment of survivor's benefits from a wage earner's
account to a widowed spouse who remarried after age 60, but not to a
similarly situated divorced widowed spouse. The question in this case is
whether those provisions violated the equal protection component of the
Due Process Clause of the Fifth Amendment.

I

The Social Security Act (the Act) originally provided only primary
benefits to qualified wage earners. Congress later provided secondary
benefits to wives, widows, dependent children, and surviving parents of
the wage earner. At that time, widows and other secondary beneficiaries
would lose their entitlement to survivor's benefits upon a subsequent
marriage. In 1950, Congress extended secondary benefits to dependent
husbands and widowers, subject to the same restriction. In 1958, Congress
created an exception to this remarriage rule so that if a widow or widower
married an individual who received benefits under the Act, neither would
forfeit survivor's benefits.

Until 1965, divorced wives, including those who had outlived their former
spouse (divorced widows), were not eligible for the same benefits provided
to wives and widows. In that year, Congress amended § 202(b) of the Act to
extend wife's benefits to a divorced wife and survivor's benefits to a
divorced widow if the recipient had been married to her former husband for
at least 20 years, and had received more than one-half of her support from
him or an agreement or court order required him to make substantial
contributions to her support. Pub. L. 89-97, § 308(a), 79 Stat.
375-376.[1] Divorced wives and
divorced widows were also subject to the same remarriage rule that had
been applied to widows and widowers. In these amendments, however,
Congress changed the remarriage rule as it applied to widows and widowers.
The new rule provided that if a widow or widower over age 60 married
someone who was not entitled to receive certain benefits under the Act,
she or he would not completely forfeit survivor's benefits. Instead, the
benefits were reduced to half of the primary wage earner's benefits. §§
333(a)(1) and (b)(1), 79 Stat. 403, 404.

In 1977, Congress again relaxed the remarriage provision for widows and
widowers, allowing them to receive unreduced survivor's benefits if they
remarried after age 60. The effective date of that amendment was 1979.
Pub. L. 95-216, §§ 336(a)(3), (c)(1), 91 Stat.
1547.[2] But Congress retained
until 1983 the provision that generally barred a divorced wife or divorced
widow from receiving benefits upon remarriage. See §§ 202(b)(1)(C),
(b)(3), § 202(e)(1)(A), (e)(1)(F). the present case involves this
temporary disparity in benefits received upon remarriage.

As a result of a pair of district court sex discrimination opinions that
invalidated portions of the Act, Ambrose v. Califano, CCH Unempl.
Ins. Rep. ¶ 17,702 (Ore.1980); Oliver v. Califano, CCH Unempl. Ins.
Rep. ¶ 15,244 (ND Cal. 1977), the Secretary of Health and Human Services
(the Secretary) promulgated regulations providing that divorced husbands
and divorced widowers would receive husband's benefits and survivor's
benefits to the same extent as divorced wives and divorced widows received
wife's benefits and survivor's benefits. 44 Fed. Reg. 34,480,
34,483-34,484 (1979); see 20 CFR §§ 404.331, 404.336 (1985). In 1983
Congress amended the Act to incorporate these regulatory changes. Pub. L.
98-21, § 301(b)(1), 97 Stat. 111. In the same bill, Congress provided that
divorced widowed spouses who remarry after age 60 are eligible to receive
survivor's benefits in the same manner as widows and widowers.

II

Appellee Buenta Owens married Russell Judd in 1937 and was divorced from
him in 1968. In 1978, when she was 61, she married appellee Kenneth Owens.
Judd died on June 19, 1982. On July 30, 1982, Owens applied for widow's
benefits on Judd's earnings account as a divorced widow. Her claim was
denied on August 27, 1982, because she had remarried. She sought
administrative reconsideration, contending that the statutory provision
denying benefits because of her remarriage was unconstitutional. Her claim
again was denied. Subsequently, Owens and the Secretary entered into an
agreement stipulating that the only disputed issue was the
constitutionality of the provisions of the Act that at that time denied
widow's benefits to divorced widows who remarried. See 42 U.S.C. §§
402(e)(1)(A), (e)(4). The parties also stipulated that, but for the
relevant provisions, Owens' right to the benefits had been established.
Based on that agreement, the parties waived any further administrative
review. On April 19, 1983, Owens filed this action in the united States
District Court for the Central District of California, and sought to
represent a nationwide class of divorced widowed
spouses.[3]

On December 23, 1983, the District Court rejected Owens' constitutional
challenge. Applying the rational basis standard of review, the court
reasoned that Congress was justified in taking one step at a time in
extending benefits to spouses who had remarried. While Owens' motion to
alter or amend the judgment under Federal Rule of Civil Procedure 59 was
pending, the 1983 amendments to the Act went into effect, so that all
otherwise eligible members of the class became entitled to receive monthly
survivor's benefits beginning in January 1984. Subsequently, the court
certified a nationwide plaintiffs' class, consisting of all divorced
widowed spouses who remarried after age 60 and who were denied benefits
between December 1978 and January
1984.[4]

On October 5, 1984, the District Court reversed its prior ruling on the
merits and held the challenged provisions unconstitutional. The court
agreed with the Secretary that congress rationally could assume that
widowed spouses are generally more dependent on income from the deceased
wage earner than are divorced widowed spouses. It reasoned, however, that
because Congress in 1977 had chosen to treat surviving divorced spouses
and widowed spouses in the same manner upon the death of the wage earner,
there was no logical basis for distinguishing between the two classes of
individuals upon their subsequent remarriage. The Secretary appealed
directly to this Court pursuant to 28 U.S.C. § 1252. We noted probable
jurisdiction, Heckler v. Owens, 474 U.S. _____ (1985). We now
reverse.

III

Congress faces an unusually difficult task in providing for the
distribution of benefits under the Social Security Act. The program is a
massive one, and requires Congress to make many distinctions among classes
of beneficiaries while making allocations from a finite fund. In that
context, our review is deferential. "Governmental decisions to spend money
to improve the general public welfare in one way and not another are 'not
confided to the courts. The discretion belongs to Congress, unless the
choice is clearly wrong, a display of arbitrary power, not an exercise of
judgment.'" Mathews v. De Castro, 429 U.S. 181, 185 (1976), quoting
Helvering v. Davis, 301 U.S. 619, 640 (1937). As this Court
explained in Flemming v. Nestor, 363 U.S. 603, 611 (1960):

"Particularly when we deal with a withholding of a noncontractual benefit
under a social welfare program such as [Social Security], we must
recognize that the Due Process Clause can be thought to interpose a bar
only if the statute manifests a patently arbitrary classification, utterly
lacking in rational justification."

When the challenged classification in this case is examined in the list
of these principles, it cannot be said that the distinctions Congress made
were arbitrary or irrational.

A

We have previously noted that "[t]he entitlement of any secondary
beneficiary is predicated on his or her relationship to a contributing
wage earner." Califano v. Joost, 434 U.S. 47, 52 (1977). In
determining who is eligible for such benefits, the scope of the program
does not allow "individualized proof on a case-by-case basis."
Ibid. Congress "has elected to use simple criteria, such as age and
marital status, to determine probable dependency." Ibid. In
particular, Congress has used marital status as a general guide to
dependency on the wage earner: "The idea that marriage changes dependency
is expressed through the Social Security Act." Id., at 52, n. 8.
One example of this assumption is Congress' original decision to terminate
the benefits of all secondary beneficiaries, including widowed spouses,
who remarried.[5] When Congress
subsequently made divorced widowed spouses eligible for survivor's
benefits, it also imposed on them the rule that remarriage terminated
benefits. This remarriage rule was based on the assumption that remarriage
altered the status of dependency on the wage earner. This Court upheld the
validity of that general assumption in Jobst. Id., at 53.

Congress was not constitutionally obligated to continue to extend
benefits to any remarried secondary beneficiary. It nevertheless chose to
do so, but in gradual steps. In 1965, Congress provided that if a widow or
widower remarried after age 60, she or he would receive reduced benefits.
In 1977, Congress provided that if a widow or widower remarried after age
60, she or he would continue to receive full survivor's benefits. Finally,
in 1983, Congress amended the Act to provide that divorced widowed spouses
who remarry after age 60 may receive survivor's benefits in the same
manner as widows and widowers. Appellees complain that Congress' failure
in 1977 to extend benefits to divorced widowed spouses who had remarried
was irrational.

This Court consistently has recognized that in addressing complex
problems a legislature "may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative mind."
Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). That is
precisely what Congress has done in this case. When Congress decided to
create some exceptions to the remarriage rule, it was not required to take
an all-or-nothing approach. Instead, it chose to proceed more cautiously.
It had valid reasons for doing so.

The House version of the 1977 bill contained a complete elimination of
the general rule terminating benefits upon a subsequent marriage. H. R.
Rep. No. 95-702, pt. 1, pp. 47-48 (1977). The House version would have
created in the first year of operation alone 670,000 more beneficiaries
than under the pre-1977
system,[6] costing $1.3 billion
in additional benefits each year.
Ibid.[7] Faced with these
concerns, Congress reasonably could decide to "concentrate limited funds
where the need [was] likely to be greatest." Califano v. Boles, 443
U.S. 282, 296 (1979). It chose only to create an exception for widows and
widowers, who presumably were more likely to depend on their spouses for
financial support that were divorced widows and widowers. Wile it may have
been feasible to have extended benefits to divorced widowed spouses in
1979 rather than 1983, Congress was not constitutionally obligated to do
so.

Congress' adjustments of this complex system of entitlements necessarily
create distinctions among categories of beneficiaries, a result that could
be avoided only by making sweeping changes in the Act instead of
incremental ones. A constitutional rule that would invalidate Congress'
attempts to proceed cautiously in awarding increased benefits might deter
Congress from making any increase at all. The Due Process Clause does not
impose any such "'constitutional straightjacket.'" De Castro, 429
U.S., at 185, quoting Jefferson v. Hackney, 406 U.S. 535, 546
(1972). As we recognized in Jobst:

"Congress could reasonably take one firm step toward the goal of
eliminating the hardship caused by the general marriage rule without
accomplishing its entire objective in the same piece of legislation.
Williamson v. Lee Optical Co., 348 U.S. 483, 489. Even if it might
have been wiser to take a larger step, the step Congress did take was in
the right direction and had no adverse impact on persons like the Jobsts."
Califano v. Jobst, 434 U.S., at 57-58.

Congress drew a reasonable line in a process that soon increased benefits
to all relevant beneficiaries.

B

The District Court correctly reasoned that under De Castro and
Boles, it was rational for Congress to assume that divorced widowed
spouses are generally less dependent upon the resources of their former
spouses than are widows and widowers. It held, however, that because
Congress had chosen to treat widowed spouses and divorced widowed spouses
identically upon the death of the wage earner, there was no rational basis
for distinguishing between them if they remarried. The logic of the
District Court's position depends on a showing that Congress did not
distinguish between divorced widowed spouses and widowed spouses prior to
remarriage. Apparently the District Court inferred that because both
divorced widowed spouses and widowed spouses were entitled to survivor's
benefits, Congress viewed the groups as equally dependent on the wage
earner. Such an inference is belied by the history and provisions of the
Act.

When Congress first began to make divorced wives eligible for wive's
benefits in 1965, it focused on that group of divorced wives whose
marriages ended after many years, when they might be "too old to build up
a substantial social security earnings record even if [they] can find a
job." H. R. Rep. No. 213, 89th Cong., 1st Sess., 107-108 (1965). To that
end, divorced wives were eligible for wife's benefits only if they had
been married to the wage earner for 20 years and received substantial
support from him. It was not until 1972 that Congress dropped the
requirement of showing support from the wage earner. Even then, Congress
retained the 20-year marriage requirement.

Congress has made the same distinctions in its treatment of divorced
widowed spouses. When they first became eligible for survivor's benefits
in 1965, it was under the same basic eligibility rules that applied to
divorced spouses. During the relevant time of this lawsuit, divorced
spouses and divorced widowed spouses had to have been married to the wage
earner for at least 10 years to receive benefits. That pre-condition did
not have to be met by spouses or widows.

These eligibility requirements demonstrate that Congress adhered to the
general assumption, approved in De Castro, that divorce normally
reduces dependence on the wage earner. The fact that Congress awards
benefits to divorced widowed spouses once the eligibility requirements are
met does not necessarily mean that their dependence is equivalent to that
of widows or widowers. Congress may view the 10-year marriage requirement
as a lesser showing of dependence, but still sufficient to justify
extension of benefits. Presumably Congress concluded that remarriage
sufficiently reduced that lesser dependency to the point where it could
conclude that benefits no longer were appropriate. These views would be
consistent with the position Congress has taken throughout the history of
the Act that divorced spouses are less dependent on the wage earner than
spouses. Because divorced widowed spouses did not enter into marriage with
the same level of dependency on the wage earner's account as widows or
widowers, it was rational for Congress to treat these groups differently
after remarriage.

The judgment of the District Court is reversed and the case is remanded
for proceedings consistent with this opinion.

It is so ordered.

Justice Powell was joined in this opinion by Chief Justice Burger and
Justices White, Rehnquist, Stevens, and O'Connor. Justice Marshall filed a
dissenting opinion, in which Justice Brennan joined. Justice Blackmun
filed a dissenting opinion.

[1] In 1972, Congress eliminated
the requirement that a divorced wife or divorced widow show a specified
level of support from her former husband, but retained the
20-years-of-marriage requirement. Pub. L. 92-603, §§ 114(a), (b), 86 Stat.
1348.

[2] Congress also reduced the
20-years-of-marriage requirement for divorced wives and divorced widows to
10 years.

[3] Appellee Kenneth Owens had
been married to Dorothy L. Owens for over thirty-four years when they were
divorced in 1978. In that same year he married Buenta Owens. He was sixty
years old. In 1982 he applied for survivor's benefits based on the
earnings account of his former wife, who had died. His claim was denied at
the initial stage and again in a reconsideration decision in 1983. He and
the Secretary also reached an agreement to waive any further
administrative review. Kenneth Owens filed suit in the United States
District Court for the Central District of California, challenging the
constitutionality of the statutory provisions with an argument virtually
identical to his wife's. When he filed his lawsuit, the District Court
already had ruled in favor of the Secretary in Buenta Owens' suit, and her
motion for reconsideration was pending. The court consolidated Kenneth
Owens' suit with that of his wife. Kenneth Owens died during the pendency
of this suit before this Court. Buenta Owens moved to be substituted for
him as an appellee in this case, a motion we granted on February 24, 1985.
Because appellees raise identical arguments, the discussion of Kenneth
Owens' case is subsumed in the discussion of Buenta Owens' case.

[4] The Secretary disputes the
propriety of the class certification and in particular the District
Court's conclusion that the waiver of further administrative review as to
the named appellees had the effect of waiving exhaustion requirements as
to all the members of the class. Because we reject the equal protection
claim, we do not reach the class certification issue.

[5] In 1958, Congress amended
this strict remarriage rule to provide that benefits would not be
terminated if a widow or widower married a person who was also entitled to
benefits under the Act. Pub. L. 85-840, §§ 307(b), (c), 72 Stat. 1031.

[6] In addition to widowed
spouses and divorced widowed spouses, the expanded class of beneficiaries
would have included surviving parents and surviving children.

[7] The contemporaneous
legislative history does not reveal what portion of that figure would have
been attributable to divorced widowed spouses. A budgetary report on the
1983 amendments that eliminated the distinction between widowed spouses
and divorced widowed spouses estimated the cost of that amendment as less
than $50 million a year. Congress in 1977 was not required to separate out
the $1.3 billion cost figure by subcategories. It was free to continue to
extend benefits following marriage only to that group of secondary
beneficiaries most closely tied to the wage earner, consistent with the
general purposes of the Act. That $50 million annual cost is sufficient to
justify fiscal concern.